Mr Christopher Carroll v Mary Campbell

• Jurisdiction: Ireland
• Judgment Date: 24 June 2022
• Judgment citation (vLex): [2022] 6 JIEC 2406
• Docket Number: FULL RECOMMENDATION ADJ-00024763 CA-00029384-007 DETERMINATION NO. TUD224 SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003
• Court: Labour Court (Ireland)

PARTIES:

Mr Christopher Carroll (Represented by Claire Bruton, B.L., Instructed by Anne O'Connell Solicitors)

and

Mary Campbell

FULL RECOMMENDATION

TU/20/26

ADJ-00024763 CA-00029384-007

DETERMINATION NO. TUD224

SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003

Labour Court

DIVISION:

Chairman: Mr Haugh

Employer Member: Mr Murphy

Worker Member: Mr Hall

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision NoADJ-00024763.

BACKGROUND:

2 2. The Employer made an appeal of an Adjudication Officer's decision under Section 11 (1), European Communities (Protection of Employees on Transfer of Undertakings) Regulation, 2003on 25 June 2020. A Labour Court hearing took place in a virtual environment on 14 January 2021. The following is the Determination of the Court.

DETERMINATION:

Background to the Appeal:

3 This is an appeal by Mr Christopher Carroll (‘the Respondent’) from a decision of an Adjudication OfficerADJ-00024763/CA-00029384-007, dated 17 June 2020) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’). The Respondent's Notice of Appeal was received by the Court on 25 June 2020. The Court heard the appeal in a virtual courtroom on 14 January 2021 in conjunction with an appeal by the Respondent from ADJ-00024763/CA-00029384-004, under the Minimum Notice and Terms of Employment Act 1973. The Court's determination in that appeal bears reference number MN/20/30.

Factual Matrix:

4 The Complainant in this matter is Ms Mary Campbell (hereafter, ‘the Complainant’). She was employed as an assistant in the local post office in Kiltimagh, County Mayo, by Ms Marion Dunne until Ms Dunne ceased trading on Friday, 12 April 2019. The Respondent opened a post office in a dedicated area within a Londis store he runs with members of his family on Monday, 15 April 2019. The Londis store is located approximately twenty to thirty metres from the premises in which Ms Dunne had operated her post office business.

5 It is common case the Complainant's employment with Ms Dunne commenced on 16 June 2017. The Complainant told the Court that that she worked 16 hours per week, over two days, for Ms Dunne and was paid €10.00 per hour. The Respondent sought to question this on the basis that he believes Ms Dunne had verbally informed him that the Complainant had worked only one day per week for her. Having examined a selection of payslips submitted by the Complainant, the Court is satisfied that the Complainant normally worked a minimum of two days per week when in Ms Dunne's employment.

6 The Complainant's employment ceased on Ms Dunne's last trading day, 12 April 2019. The Complainant did not receive any notice period or payment in lieu of notice from Ms Dunne as the latter was of the view that the Complainant's employment would transfer to the Respondent pursuant to the Regulations.

Written Submissions of the Parties:

7 The Complainant was assisted by her daughter at the hearing and did not have the benefit of legal assistance in presenting her case. Her submission comprises largely of her recollection of the events that took place immediately prior to the cessation of Ms Dunne's business, including assurances given to her by Ms Dunne that there would be a transfer of her employment to the Respondent's business and also the Complainant's engagement (via text message and face-to-face) with the Respondent. The Complainant submits that the Respondent offered her employment in his new post office but on terms and conditions that differed significantly from those she enjoyed while in Ms Dunne's employment.

8 The Respondent denies that a transfer of undertakings within the meaning of the Regulations took place between Ms Marion Dunne and himself in April 2019, or at all. In support of his appeal, the Respondent makes the following submissions:

9 No assets nor employees transferred from Ms. Dunne to the Respondent;

10 When the Respondent's post office commenced trading on 15 April 2019 the staff employed there comprised the Respondent (as postmaster), the Respondent's wife along with a third member of staff, ‘CC’; CC had never worked in Ms. Dunne's post office;

11 There was no transfer of premises: the Respondent's post office operates from an entirely different location i.e. from within his existing Londis store and not the premises from which Ms. Dunne's post office previously operated;

12 The Respondent paid for all materials, labour, electrical and security services required for the construction of the dedicated post office space within his Londis store in accordance with specifications provided to him by An Post;

13 The bespoke premises comprises the primary asset necessary for the conduct of the business of a post office;

14 There are reduced monetary benefits for new postmasters by comparison to the arrangements that would have been in place with postmasters and postmistresses...